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The Immigration Court System Is Broken

United States Immigration Courts

In a recent episode of Last Week Tonight with John Oliver, Oliver highlighted the current state of our nation’s immigration courts and the decisions being made by Attorney General Jeff Sessions for the Department of Justice (DOJ). Unlike most other courts, the immigration court system is housed under the Department of Justice within the executive branch of the federal government. This makes immigration courts subject to political pressures that are less prevalent among criminal and civil courts. These pressures may very likely be this administration’s response to the backlog of cases within the immigration court system, which has increased at an alarming rate over the last 5 years. In Texas alone, there are over 107,000 cases still pending. The United States as a whole has nearly 700,000 pending cases. The graphs below represent the increase in the number of pending immigration cases and have been compiled by Syracuse University (http://trac.syr.edu/phptools/immigration/court_backlog).

Texas Immigration Court Backlog
Texas Immigration Court Backlog


United States Immigration Court Backlog
United States Immigration Court Backlog

Governmental Response to Long Wait-times

The wait time to have a hearing in some states can be upwards of 5 years due to these backlogs. In response to these wait times, Attorney General Jeff Sessions is working to implement a quota for federal immigration judges. Such a quota would require that each judge complete 700 cases per year. Essentially, the DOJ is asking immigration judges to neglect their Fifth Amendment duty to ensure that all who enter their court are given due process under the law.

What do immigration lawyers think about quotas?

Annaluisa Padilla, President of the American Immigration Lawyers Association, says, “A system that evaluates immigration judge performance based on how fast they can churn through cases will simply pressure judges to rush through decisions, rather than give careful consideration to the law and facts in each case. Immigration judges already have among the highest caseloads of federal judges. Justice and fairness cannot be thrown out the window to meet an arbitrary quota.”

Judges are being pushed to opt for speed rather than thoroughness in evaluating the facts. As these judges argue, the faster the case is decided, the more likely the decision will be for deportation instead of asylum.

Benjamin Johnson, Executive Director of the American Immigration Lawyers Association, says, “This new proposal will only make an intolerable situation worse. It is an affront to the foundation of American justice, which was built on the principles of equality before the law and an opportunity to have cases decided by independent judges. Immigration judges are making important, often life or death, decisions every day: whether a mother and child will remain together or be torn apart, whether a father is returned to a country where he was persecuted, or whether the dreams of an immigrant will be allowed to grow and flourish, or die on the vine. The primary focus for judges must be to make the right decision. Creating an environment where the courts care more about speed than accuracy and where judges are evaluated and rewarded based on quantity instead of quality is simply unacceptable.”

What makes immigration courts unique?

Immigration courts are part of the executive branch, so defendants are not entitled to an appointed attorney. As a result, only 37% of defendants are able to obtain legal representation, forcing many children and adults to defend themselves in court. Those without a skilled legal representative are much more likely to be sentenced to deportation. Additionally, the disparity of deportation sentencing rates among states is staggering. In some states, approximately 35% of defendants are deported, but in others, that number can be as high as 90%.

What has this presidential administration done to fix the courts?

The immigration court system is broken, and it appears that it will remain broken for the foreseeable future. An independent study of the current state of immigration courts was conducted. The results of this study provided the Department of Justice with a list of recommended changes to improve the quality and efficiency of these courts. However, most policy changes made by the Trump administration have directly contradicted the recommendations of this study.

Disclaimer: The purpose of this post is to provide general information and is not to be constituted as legal advice. If you need help with a specific issue, please seek the advice of an attorney.